Divorce often raises many questions about what life will look like after the marriage has ended. One of the most significant concerns is financial security, particularly where one spouse has been financially dependent on the other during the marriage.
From the outset, it is important to understand that a former spouse is not automatically entitled to spousal maintenance after divorce. Whether maintenance is awarded depends on the circumstances of each case, and South African law provides several important principles that guide the court’s decision.
What Is Spousal Maintenance?
Spousal maintenance is financial support paid by one former spouse to the other after divorce. Its purpose is not to punish one party or reward the other, but rather to provide financial assistance where it is fair and justified to do so.
Some spouses may require temporary financial support while they become self-sufficient, while others may need longer-term assistance due to age, health, or other personal circumstances.
One of the most important aspects of South African divorce law is that a claim for spousal maintenance must be addressed before the divorce is finalised. If maintenance is not included in a settlement agreement or ordered by the court before the final divorce order is granted, a spouse will generally lose the right to claim maintenance thereafter.
Factors Considered by the Court
As there is no automatic formula for calculating spousal maintenance, the court will take into consideration the following factors to determine what is fair in light of the parties’ individual circumstances:
- the current and future financial means of both spouses;
- each spouse’s earning capacity;
- their financial needs and obligations;
- the age of each party;
- the duration of the marriage;
- the standard of living enjoyed during the marriage;
- the conduct of the parties, where it is relevant to the breakdown of the marriage; and
- whether any redistribution order has been made.
South African Courts and Practitioners Generally Recognise Four Types
1. Rehabilitative maintenance
This is the type of maintenance awarded most frequently. Rehabilitative maintenance is intended for a spouse who is capable of supporting themselves but needs time to re-enter the workforce or become financially independent. This often applies where one spouse has spent years caring for children or managing the household instead of pursuing a career. The maintenance is awarded for a limited period to allow the recipient to obtain employment, complete further education, or acquire the necessary skills to become self-supporting.
2. Permanent maintenance
Permanent maintenance is generally reserved for exceptional circumstances. It may be awarded where a spouse is unlikely to become financially independent because of advanced age, illness, disability, or other factors that make employment unrealistic.
3. Token maintenance
A court may sometimes order a nominal or token amount of maintenance. This type of order recognises that although maintenance may not presently be necessary, circumstances could change in the future. A token order preserves the possibility of increasing the maintenance amount at a later stage if the need arises.
4. Interim maintenance
Divorce proceedings can take several months or even years to conclude. During this period, one spouse may require financial assistance to meet day-to-day living expenses. Interim maintenance provides temporary relief while the divorce is still pending and may assist with necessities such as accommodation, groceries, and medical expenses.
Payment and Duration of Maintenance
Although South African law allows a court to order a once-off lump-sum payment where appropriate, spousal maintenance is most commonly paid in monthly instalments. The duration of these monthly maintenance payments will depend on whether it arises from a court order or a settlement agreement between the parties.
Where the court determines maintenance without an agreement, it may order maintenance for whatever period it considers fair, generally until the recipient dies or remarries. Where maintenance forms part of a settlement agreement that is made an order of court, the parties have greater flexibility. They may agree that maintenance continues until death or remarriage, or even that payments continue from the paying spouse’s estate after their death.
It is important to note that, in most cases, the obligation to pay spousal maintenance comes to an end when the recipient remarries, as the new marriage creates a reciprocal legal duty of support between the spouses.
Some maintenance agreements also contain what is known as a dum casta clause, which provides that maintenance will terminate if the recipient begins cohabiting with another person. However, such a clause is not automatically implied into every maintenance agreement. Where no dum casta clause exists, the paying spouse cannot simply stop making maintenance payments because the recipient has entered into a new relationship. Instead, the paying spouse must approach the court to apply for the maintenance order to be varied or suspended on the basis that the recipient is receiving financial support from another source.
Conclusion
Spousal maintenance is often difficult to understand as there is no universal rule across the board. It is very fact-specific and dependent on each marriage and the needs of each spouse. Understanding your rights and obligations before a divorce is finalised can help ensure that any maintenance arrangements are fair, appropriate, and legally enforceable.
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